Confessed killer Kody Patten will appear in Elko Justice Court August 2 and 3 for his preliminary hearing on the murder of 16 year old West wendover Girl Mickey Costanzo.
Patten’s codefendant in the case Toni Fratto was already bound over for trial two weeks ago in a similar hearing.
The two had been scheduled to appear together much to the consternation of Fratto’s defense team of John Springgate and David Lockie.
“I wouldn’t call it a victory but we are relieved the two will be separated,” Lockie said Monday.
By separating them at the preliminary hearing stage, Kacin may have put the two a divergent tracks for trial and it is less and less likely that the Fratto and Patten will be tried at the same time in the same court or even with the same judge.
Unlike a trial where a jury or judge rules on the guilt or innocence of the accused, a preliminary hearing’s objection is to determine whether there is enough evidence against the accused and the judge must find there is probable cause that a crime was committed.
The rules of evidence are also much looser in a preliminary hearing than a trial, hearsay for example is typically allowed.
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Patten was arrested for the March 3rd murder of Micaela Costanzo three days after she had gone missing and within a few hours after her body was discovered in a shallow grave some 5 miles west of Wendover.
Patten cracked and admitted to killing the young girl after an all night interrogation session and a phone call to his father Kip. According to police reports at no time during the intense 8 hours of so of questioning did Patten implicate his live in girlfriend Fratto in the crime and indeed may have even used her as his alibi.
For the first six weeks after his arrest, it was the position of the Elko District Attorney’s office and the Elko Sheriff’s Department that Kody Patten was the sole suspect in the case and would alone stand trial for the murder of Micaela Costanzo.
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All that changed early last month when John Ohlson, Patten’s lead attorney released the bombshell confession from Toni Fratto in which she claims it was she and not her lover who killed Costanzo. Within 24 hours of Ohlson’s release of the taped confession to the court, Fratto was arrested and charged with the death penalty eligible open murder of her classmate.
“This was almost the perfect murder case, really cut and dried,” said a source close to the investigation. “There was a mountain of evidence against Patten; forensic and digital recordings, there was his confession and all the supporting facts. Then Toni Fratto walks in and everything blows up.”
Murder trials are often compared to card games, this one is now a three sided 52 pickup.
Time and time again Ohlson is mentioned in support of the DA’s assertion that Fratto’s confession is not protected by the attorney/client privilege. And for their part Fratto’s lawyers accused Ohlson of blatantly misleading their client and perhaps even violating the attorney rules of conduct.
Ohlson is not the only one to come harsh criticism from Springgate and Lockie. Kip Patten, Kody’s father also comes under the gun for unduly influencing Fratto. According to the response Kip Patten took the opportunity the absence of Toni Fratto’s parents Cassie and Claud, from town to drive their daughter from Wendover 110 miles to Elko for that fateful meeting in Kump’s office.
Kip Patten also figures prominently in Kacin’s ruling and was a key witness for the prosecution during the hearing.
According to the ruling Fratto went to her lovers father about a week before she went to his attorneys with her tale.
On the witness stand Patten explained why he went to his son’s lawyers rather than the police with the information stating something to the effect he had no confidence in the police to investigate Fratto’s claims.
